TRENTON
– A three-judge Appellate panel has
upheld the state’s assessment of a
$600,000 penalty against a developer who
installed a major sewer line without first
obtaining the required state permit, Attorney
General Anne Milgram announced today.
In a ruling issued today, the Appellate
panel affirmed a $604,110 civil penalty
assessed against Town and Country Developers
of New Jersey, Inc. by the state Department
of Environmental Protection. DEP assessed
the penalty after Town and Country installed,
without a permit required under the “dry
sewer law” provision of the state’s
Water Pollution Control Act, sewer infrastructure
designed to serve a 600-plus-unit development
of town homes and single-family-dwellings
in Nutley, Essex county.
In upholding an earlier Final Agency Determination
against Town and Country by DEP, the Appellate
panel also rejected the developer’s
argument that the state-imposed civil penalty
was exempted by New Jersey’s so-called
Grace Period Law. The Grace Period Law makes
provisions for violations that are inadvertent
or unwitting in nature, or corrected (or
correctable) within a short period of time.
The Appellate panel determined that, as
the state had maintained, Town and Country
was well aware of its obligation to obtain
a DEP permit, and that its installation
of a major sewer line without one was deliberate.
“We
are committed to upholding the law and,
simply put, the law says there will be no
construction of sewers in New Jersey without
a state permit,” said Attorney General
Milgram. “The purpose of the law is
to provide the state with ultimate authority
over decisions that should be driven by
what is the safest and most environmentally
sound course, not by local and private development
interests. We don’t take willful breaches
of the law lightly, and will work with DEP
to prosecute such cases where appropriate.”
Said DEP Commissioner Lisa P. Jackson, ”This
company's actions completely flew in the
face of our comprehensive permit program
that protects New Jersey's ground water
and surface water supplies through the proper
construction of sewers.”
”We
will not tolerate developers taking it upon
themselves to skirt our permit program,
which exists solely to protect our environment,”
Jackson added.
Town and Country, headquartered in Woodcliff
Lake, began developing its 602-unit housing
development in Nutley in the late 1990s.
Sanitary sewers for a portion of the project
were built over a 10-day period in the fall
of 1998.
Town and Country did not, however, file
an application for the required permit with
DEP until June 10, 1999 – more than
six months after construction of the sewer
line was complete and two houses in the
first construction phase of the project
were built and occupied.
Town and Country obtained the permit on
July 30, 1999 – nearly two full weeks
after the sewer line was already in use.
(The “dry sewer law” provision
of the Water Pollution Control Act prohibits
construction of sewer lines without approvals,
even if the lines at issue are never used.)
Following an investigation, the DEP issued
an Administrative Order and Notice of Civil
Administrative Penalty Assessment against
Town and Country in 2003. There was a subsequent
hearing before an Administrative Law Judge,
followed by the Final Agency Determination
from DEP which rejected Town and Country’s
argument concerning the grace period provisions
of the law.
Town and Country appealed the Final Agency
Determination, reiterating the argument
that its failure to obtain a DEP permit
was a “minor” violation excusable
under the Grace Period Law.
The Appellate panel disagreed, noting that
Town and Country not only failed to file
its state permit application in a timely
fashion, but also had installed and operated
the residential sewer line illegally. Town
and Country offered an alternative argument
that the DEP-imposed $604,110 penalty was
erroneously calculated. The Appellate panel
rejected that argument as well.
Deputy Attorney General Robert Marshall,
of the Division of Law’s Environmental
Enforcement Section, handled the Town and
Country matter on behalf of the state.
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